It’s called March Madness. CBS and Turner Broadcasting have paid more than $10.8 billion for rights to an annual 68-team college basketball tournament through 2024. But what has the money really bought?
On Friday, a federal judge in San Francisco partly certified a class action antitrust lawsuit brought by NCAA collegiate athletes. The plaintiffs allege that the NCAA forces its athletes to relinquish the right to the commercial use of their images in perpetuity. Now, as a result of the judge’s certification, the athletes will be allowed to push for an injunction barring the NCAA from prohibiting current and former student-athletes from entering into group licensing deals for the use of their names, images, and likenesses in video games and game broadcasts.
If the suing athletes are eventually successful, all hell could break loose on the TV licensing front.
In U.S. District Judge Claudia Wilken‘s certification ruling (read here), she denied the college athletes from pursuing compensation for the past use of their images and likenesses. The judge said the plaintiffs hadn’t provided a feasible method for determining who would have played collegiate sports in the absence of pay restraints, which she says “contributes to the impossibility of determining which class members were actually injured.”
But the plaintiffs scored a key victory on the road forward — toward the end of amateurism.
The athletes seek an injunction that would bar the NCAA from interfering with group licensing deals made by student-athletes.
“Their request for this injunction is not merely ancillary to their demand for damages,” writes Judge Wilken. “Rather, it is deemed necessary to eliminate the restraints that the NCAA has allegedly imposed on competition in the relevant markets. Without the requested injunctive relief, all class members — including both current and former student-athletes — would potentially be subject to ongoing antitrust harms resulting from the continued unauthorized use of their names, images, and likenesses. Because an injunction would offer all class members ‘uniform relief’ from this harm, class certification is appropriate.”
A trial is scheduled for next June, and in the interim, there could be appeals and settlement talks. But if the athletes eventually attain an injunction, there will be no stopping athletes from threatening broadcasters with litigation for the use of their likenesses and proposing alternative license deals. Or as New Hampshire School of Law sports law professor Michael McCann puts it, “Television networks would have to negotiate not only with the NCAA but with student-athletes for broadcast rights, while the NCAA and student-athletes might strike separate licensing contracts with two different video game publishers.”
The networks might raise First Amendment defenses to athlete publicity rights claims — which Judge Wilken acknowledged last month hasn’t been addressed at the Supreme Court nor the federal courts of appeals — but surely, the next time a major television network spends billions of dollars on broadcast game rights, it will likely demand assurances that there are no clouds over those rights.